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Wednesday, May 31, 2017

Robert Mueller has a wide remit and ample authority to fulfil his duties.

( May 29, 2017, Mumbai, Sri Lanka Guardian) A
dishonest judge perverts the course of justice — a dishonest prosecutor
ensures that the course of justice doesn’t even begin. Recent events in
the US, concerning the appointment of Robert Mueller as special counsel
for the Russia investigation, holds lessons for every country governed
by the rule of law.

The situation could not be murkier. Respected by both Republicans and
Democrats, the former FBI director was recently appointed by deputy
attorney general Rod Rosenstein after President Donald Trump’s dismissal
of James Comey as FBI director had created a deep, nation-wide crisis
of confidence. Attorney general Jefferson Sessions had to hand the
investigation over to his deputy after it was revealed that he had kept
suspiciously silent about his meetings Russian ambassador Sergey
Kislyak.

Mr Kislyak was also responsible for Michael Flynn’s short stint as
national security adviser being terminated by Mr Trump after disclosures
of secret conversations with the ambassador — which he lied about —
were published by the press. In conversations with then director Comey,
Mr Trump sought pledges of loyalty and assurances that he himself was
not under investigation, and capped it with a word of “advice” on the
investigation into Mr Flynn’s alleged misconduct. Mr Comey’s refusal
brought about his dismissal.

There is a long and instructive tradition of the special counsel in the
US. After Watergate came the Iran-Contra and Whitewater probes.
President James Carter, secured the enactment of the Ethics of
Government Act, 1978. It envisaged the appointment of a special counsel
by the court to which he reported. The act lapsed in 1999, but the
Department of Justice issued internal regulations enabling the attorney
general to appoint a special counsel.

Robert Mueller has a wide remit and ample authority to fulfil his
duties. He is specially authorised to investigate “any links and/or
coordination between the Russian government and individuals associated
with the campaign of President Donald Trump”. He can press criminal
charges.

In the UK, the first Labour government fell in 1924 because it withdrew a
prosecution for political reasons. The minutes from a Cabinet meeting
on Aug 6, 1924, recorded: “No public prosecution of a political
character should be undertaken without the prior sanction of the Cabinet
being obtained”. It was rescinded in 1931. The independent Crown
Prosecution Service came into being in 1986.

Institutions and procedures may vary, but the fundamental principle
remains unchanged — political considerations must not be allowed to
interfere with the course of justice. India adopted a legal system based
on British law. Rulings of its Supreme Court affirm the independence of
the prosecuting agency from governmental and political influence or
consideration. But the reality is its direct opposite.

Prof D.H. Bayley, author of the definitive work The Police and Political
Development in India, observed that “a dual system of criminal justice”
emerged. “The one of law, the other of politics … the rule of law in
modern India, the frame upon which justice hangs, has been undermined by
the rule of politics. Supervision in the name of democracy has eroded
in the foundations upon which impartiality depends in a criminal justice
system.”

The pogrom of Muslims in Gujarat in 2002 saw a near total collapse of
the criminal justice system. Many a prosecutor turned defence counsel.
There were, however, a good few notable exceptions and some important
figures were brought to book.

However, nearly a quarter century after the demolition of the Babri
mosque in December 1992, the prime accused in the conspiracy case are
yet to be brought to book. One of them, L.K. Advani, became Union home
minister, in charge of the Central Bureau of Investigation that was
pursuing the case. Recently, there has been a spate of cases in which
Muslims were falsely charged with terrorism and spent years in prison,
only to be acquitted.

After 2014, the National Investigation Agency under the Narendra Modi
government has treated Hindus accused of terrorism with kid gloves.
There is no danger of India having a Robert Mueller any time soon. In no
case can one rely on executive restraint. Restraint must be imposed by
law, and the law must be inscribed within the Constitution. If the
Constitution can establish a comptroller and auditor-general, why can it
not establish the office of an independent director of public
prosecutions?

The writer is
an author and lawyer based in Mumbai. He is a columnist for Dawn, a
daily newspaper in Pakistan where this piece first appeared